14 July, 2011
Whilst there have always been some first instance decisions on rocking flag defects, the decision by the Court of Appeal in the case of Dalton v Nottingham County Council on the 6th July 2011 delivered a judgment as to how highway authorities should deal with the issue of dangerousness in such circumstances.
Briefly, the appeal case concerned a Claimant who whilst walking across a pedestrianised area in the town centre stepped on a loose, raised and wobbling paving block and stumbled and fell suffering serious injury.
The area was constructed in a manner seen in many town centres with paving blocks in a herringbone pattern. The particular block in question was triangular in shape to accommodate the fact it abutted a utility service manhole cover. The Court found it should have attracted the need for particular vigilance during inspections as small blocks laid in such a manner were likely to work loose and it had formed a natural route between the town hall and the shopping area as well as being the subject of delivery vehicles driving over the area.
The Court discussed the fact that in an urban pedestrian area whilst users must be aware of reasonable height differentials users do not expect the structure underfoot to be shifting in nature. In those circumstances and given the nature of the defect complained of, the Council's challenge on dangerousness was dismissed, which is the first hurdle the Claimant had to prove.
The Court were at pains to stress that they accepted highway authorities were not guarantors of public safety and were rightly sensitive to findings upon them and upon hard pressed council tax payers a standard of inspection and maintenance which was unrealistic and disproportionate.
However, Highway Authorities will ask the question that when inspectors carry out their duties is there a duty to step on to each block?
The Court held that the area in which this particular block was laid and "its visual appearance cried out for closer inspection." Areas around points of interest such as manhole covers or on a well trodden pedestrian route given the method of construction required a prudent inspector to ensure the blocks were stable.
It is our experience that rocking flags are likely to overcome the test of dangerousness no matter what the differential height difference. In addition inspectors should be provided guidance to identify potential hot spots and tell tale signs for rocking blocks and flags in such areas which are usually visually identifiable with missing pointing and slightly raised height differentials. Where smaller construction materials are used such as triangular shaped blocks then these areas are more likely to work loose and closer scrutiny during inspections should be undertaken should the Council wish to satisfy the Court that they have a section 58 Highway Act defence.